Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Expands Expression
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The Supreme Court of India declared the relevant provisions that allowed police to make domiciliary visits to ‘habitual criminals’ or individuals likely to become habitual criminals as unconstitutional. The police would visit Kharak Singh’s house at odd hours, often waking him up from his sleep. The Court reasoned that the visits infringed the petitioner’s right to life, which can only be restricted by law and not executive orders such as the Uttar Pradesh Police Regulations. However, the Court rejected the petitioner’s claim that the shadowing of habitual criminals infringed his right to privacy because this right was not recognized as a fundamental right under India’s Constitution.
The latter part of the judgment has now been overruled in the August 2017 landmark decision Puttaswamy v. India in which a nine-judge bench of the Supreme Court held unanimously that the right to privacy was a fundamental right under the Indian Constitution.
The petitioner, Kharak Singh, had been charged with violent robbery as part of an armed gang in 1941. He was released due to lack of evidence, but a ‘history sheet’ was opened in regard to him under the Uttar Pradesh Police Regulations. These regulations provided for surveillance powers, including powers of domiciliary visits, for habitual offenders or people likely to become criminals.
Based on these provisions, the police would often visit Singh’s house at odd hours, waking him up when he was sleeping. The petitioner argued that these regulations were in violation of his right to life with dignity under Article 21 of the Indian Constitution, which includes the right to privacy. He also argued that the measures violated personal liberties guaranteed under Article 19 of the Indian Constitution.
The six-judge bench of the Supreme Court gave concurring opinions, striking down the relevant provisions of the Uttar Pradesh Police Regulations as unconstitutional.
Chief Justice Sinha and Justices Imam and Mudholkar joined in Justice Ayyangar’s opinion. He observed that the regulations provided for several surveillance powers, including secret picketing of the house; domiciliary visits; and inquiring into and shadowing so-called “history-sheeters” in order to keep records of their movements and the persons they contact.
He rejected the argument that the psychological effect of the picketing curtailed freedom of movement under Article 19(1)(d), finding that the concerned person or persons visiting the house would not be aware of the picketing.
Next, he considered the question of domiciliary visits. He held that this impacted on the right to life, protected under Article 21 of the Constitution, which implied the right to life with human dignity – and not mere animal existence. He considered that the power to enter someone’s house in the middle of the night to confirm their presence ran contrary to this right. This plainly violated Article 21 since the right to life could only be restricted by ‘law’; and the executive regulations of the Uttar Pradesh Police did not fall within the definition of ‘law’.
Finally, he considered that shadowing of the “history-sheeters” did not cause any hindrance to their movement, and that any effect on privacy was irrelevant as the right to privacy was not a fundamental right. He therefore held that the regulations should be struck down only with respect to domiciliary visits.
Justice Shah joined in with Justice Subba Rao’s opinion. They agreed with the majority in so far as the provision for domiciliary visits was unconstitutional. However, Justice Subba Rao considered that the Regulations in their entirety violated the right to freedom of movement and the right to life and were therefore unconstitutional. Justice Subba Rao held that the right to life and personal liberties under Article 21 provided protection against any encroachments on personal liberties, whether direct or indirect. He considered that the right to privacy was to be considered a fundamental right under Article 21, even though the Constitution did not expressly provide for it. He argued further that the supervision of one’s private life as provided in the regulations clearly violated this right. Since the regulations could not be considered to be “law”, it followed that they violated Article 21.
Furthermore, Justice Subba Rao considered that the infringement of the right to privacy prevented a person from expressing his or her innermost thoughts. He found, therefore, that the regulations also violated the right to freedom of expression, as protected under Article 19(1)(a) of the Constitution. Furthermore, Justice Subba Rao held that the right to freedom of movement, protected under Article 19(1)(d), had been violated as this right included not just freedom from physical obstructions to movement but also the right to move freely, without undue restrictions. He considered that shadowing by the police constituted a restriction on this freedom of movement. Justice Subba Rao therefore considered that the regulations in their entirety violated fundamental rights and were unconstitutional.
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This is a six-judge bench and the majority opinion is binding on future Courts but only in respect of its ruling that the part of the Uttar Pradesh Police Regulations that allowed police to make domiciliary visits to ‘habitual criminals’ or individuals likely to become habitual criminals was unconstitutional. The nine-judge bench of the Supreme Court in the 2017 case of Puttaswamy v India held unanimously that the right to privacy was a fundamental right under the Indian Constitution thereby overruling the majority concurring opinion and upholding the two-judge concurring opinion that had considered that the right to privacy was a fundamental right under Article 21 in terms of its effect on freedom of expression and the right to life.
Judgments of the Indian Supreme Court are regarded as influential in other common law jurisdictions.
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